LAWNTON KINDERGARTEN PRESCHOOL ASSOCIATION INC EARLY CHILDHOOD ENTERPRISE AGREEMENT 2024

Application for approval of the Lawnton Kindergarten Preschool Association Inc. Early Childhood Enterprise Agreement 2024

[1] This decision deals with an application made for approval of an enterprise agreement known as the Lawnton Kindergarten Preschool Association Inc Early Childhood Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Lawnton Kindergarten Preschool Association Inc. (the Applicant). The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a shortened employer name and different name for the Agreement to that which was eventually made. I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

[3] The Agreement contains a typographical error at clause 5.5.5 which incorrectly refers to clause 1.5.7 when t should refer to clause 1.4.8. This was raised with the Applicant who asserts it to be an obvious error, defect or irregularity. Bargaining representatives were made aware of this and made no objection. I am satisfied that this issue constitutes an obvious error, defect, or irregularity and I will amend the Agreement accordingly pursuant to s.218A of the Act.

[4] The Agreement does not contain a delegate's rights term that is no less favourable than the modern award, pursuant to s.205A, and on that basis the term in the relevant modern award will apply and the delegates' rights term in the Agreement at clause 1.13 will have no effect.

[5] The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[6] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[7] Pursuant to s.190(3) of the Act, I accept the undertakings.

[8] Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[9] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 3.3.2 - Notice of Termination by Employees.

However, noting clause 1.2.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[10] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 29 April 2028.

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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